Citation Nr: 21063599 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-05 772 DATE: October 14, 2021 ORDER Entitlement to a rating in excess of 60 percent for residuals of prostate cancer, status post radical prostatectomy is denied. FINDING OF FACT The Veteran's prostate cancer residuals are manifested by a definite decrease in kidney function. CONCLUSION OF LAW The criteria for an evaluation in excess of 60 percent for prostate cancer residuals, status-post radical prostatectomy with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.115a, 4.115b, Diagnostic Code 7528-7507. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The case was most recently remanded by the Board in December 2020 for further development. That development having been completed, the case is once again before the Board. Under 38 U.S.C. § 7104 (2018), Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities and are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The relevant focus for adjudicating an increased disability rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2016). For all periods relevant to this appeal, the Veteran's residuals of his prostate cancer, have been rated according to the criteria under 38 C.F.R. § 4.114, Diagnostic Code 7528-7507. Diagnostic Code 7528 is for malignant neoplasms of the genitourinary system. A note following the code provides that, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. In this case, the evidence of record shows that the Veteran has not experienced any reoccurrence or metastasis of prostate cancer since the radical prostatectomy in March 2015. As such, he is to be evaluated under Diagnostic Code 7507. Diagnostic Code 7507 instructs that the disability is to be rated according to the predominant symptoms as renal dysfunction, hypertension, or heart disease. For renal dysfunction, a noncompensable rating is assigned where there is albumin and casts with history of acute nephritis; or, hypertension that is noncompensable under Diagnostic Code 7101. A 30 percent rating is assigned when there is constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. The record shows a VA examination of July 2021. The examiner noted no evidence of lethargy, weakness, no medications used as treatment, or reports of hospitalizations. The examiner did not indicate the Veteran is able to perform only sedentary activity, due to persistent edema caused by renal dysfunction. It was also noted that the Veteran does not require regular dialysis. The Veteran had laboratory results of creatinine at 1.83 mg% and BUN at 32 mg%. See July 2021 VA examination. An August 2016 VA examination reveals a BUN of 25 mg% and creatinine of 1.4 mg% recorded in July 2016. At no time throughout the appeal does the evidence show the Veteran's renal dysfunction was manifested by persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, which is required for the next higher 80 percent schedular rating. All of the objective laboratory values show BUN and creatinine at values less than what is required for the 80 percent rating. Subjectively, the Veteran stated that he works as a carpenter and is "all in the game, very active." See February 2021 Correspondence. This, along with the medical evaluations, does not comport with generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent evaluation is not warranted, as the Veteran does not require regular dialysis, nor is he relegated to only sedentary activity. As such, the Board concludes that the Veteran is appropriately assigned a 60 percent evaluation for the residuals of his prostate cancer and a higher rating is not supported at any time under Diagnostic Code 7507. (Continued on the next page) In the February 2021 Correspondence, the Veteran stated he "will have many involuntary spurts of urine." The Veteran also mentioned frequent urination during the day and night during the November 2020 Board hearing. The Board has considered whether a separate evaluation for a voiding dysfunction is warranted. However, as noted above, the Veteran's predominant symptom for the residuals of his prostatectomy is renal dysfunction. Further, 60 percent is the highest disability rating available for any form of voiding dysfunction. Therefore, an increased rating based on a voiding dysfunction would not be allowed, as a higher rating is not available. 38 C.F.R. § 4.115a. Accordingly, the Board finds that a rating in excess of 60 percent for service-connected prostate cancer residuals, status-post radical prostatectomy with erectile dysfunction is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.